Armed Forces (Special Powers) Act (AFSPA)

APR 5

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IN NEWS

  • Ministry of Home Affairs announced the reduction of “disturbed areas” under the Armed Forces (Special Powers) Act in Assam, Manipur and Nagaland with effect from April 1, 2022.

MORE ON NEWS

  • According to the Ministry of Home Affairs, AFSPA is being removed from 15 police station areas in seven districts of Nagaland; 15 police station areas in six districts of Manipur; and 23 districts entirely and one district partially in Assam.

                                         

WHAT LED TO THE PARTIAL WITHDRAWAL OF AFSPA?

  • Continuous efforts of the Central Government have led to a significant improvement in the security situation and accelerated development.
    • In comparison to 2014, there has been a reduction of 74 percent in militancy incidents in 2021.
    • Similarly, deaths of security personnel and civilians have also come down by 60 percent and 84 percent respectively during this period.
  • The Government of India in the last three years has signed several agreements to end insurgencies and bring lasting peace to the North Eastern States.
    • For example, the Bodo Accord of January, 2020 which resolved the five decades long Bodo problem of Assam and the Karbi-Anglong Agreement of September 4, 2021 which resolved the long standing dispute over the Karbi region of Assam.
    • Similarly, the NLFT (SD) agreement was signed in August 2019 to bring militants into the mainstream of society in Tripura.
    • A historic agreement was signed on January 16, 2020 to resolve the 23 year-old Bru-Reang refugee crisis, under which 37,000 internally displaced persons are being resettled in Tripura.
    • On March 29, 2022, another important agreement was signed regarding the boundaries of Assam and Meghalaya.
  • In Manipur, insurgency as well as heavy militarisation have been on the decline since 2012, when the Supreme Court started hearing a PIL on extra-judicial killings.
  • In Nagaland, all major groups including the NSCN(I-M) and Naga National Political Groups (NNPGs) are at advanced stages of concluding agreements with the government.
  • Also the killing of 14 villagers in Oting, Mon district,Nagaland, is seen as having had an impact on reviving the demand to repeal AFSPA.

WHAT IS AFSPA?

In simple terms, AFSPA is a law which gives immense powers to armed forces to maintain rule of law in the “disturbed areas” declared by MHA.

HISTORY:

Before Independence:

  • The AFSPA was first enacted by the British as an ordinance in the backdrop of Quit India Movement in 1942.
  • Shaken by the massive scale of violence across the country, the then Viceroy Linlithgow promulgated the Armed Forces (Special Powers) Ordinance, 1942.
  • This Ordinance practically gave the Armed Forces a “license to kill” when faced with internal disturbances.
  • On the lines of this ordinance, the Government of India promulgated four ordinances in 1947 to deal with internal security issues and unrest arising due to partition in four provinces Bengal, Assam, East Bengal and the United Provinces.

After Independence:

Parliament has enacted three different acts under AFSPA for different regions

  1. Armed Forces Special Powers (Assam and Manipur) Act, 1958
  • AFSPA was first enacted to deal with the Naga insurgency in the Assam region.
  • It was later extended to all North-Eastern states.
  1. Armed Forces (Punjab and Chandigarh) Special Powers Act, 1983
  • In order to enable the central armed forces to operate in the state of Punjab and the union territory of Chandigarh which was battling the Khalistan movement in the 1980s.
  • As the Khalistan movement died down AFSPA was withdrawn in 1997.
  1. Armed Forces (Jammu and Kashmir) Special Powers Act, 1990
  • Enacted in 1990 in order to tackle the unprecedented rise in militancy and insurgency in Jammu and Kashmir.
  • Implementation of AFSPA in J&K has become highly contentious but it still continues to be in operation.

KEY PROVISIONS OF THE AFSPA ACT

  • Coverage:
    • “Armed forces” has been defined under AFSPA as military forces and the air forces operating as land forces, and includes all other central armed forces deployed in a state or UT.
  • Designating authority:
    • According to Section 3 of the Act, an entire state or a part of the state area can be designated as “disturbed” by the governor of the state, the administrator of a Union Territory, or the Centre.
  • Duration:
    • Once a region is declared ‘disturbed’ then it has to maintain the status quo for a minimum of three months.
    • The Act is usually extended every six months after a review by the State government.
  • Powers under the Act:
    • Section 4 of AFSPA accords special powers to armed forces, authorising security personnel to open fire, arrest people without warrants, enter and search without warrant. - all while having immunity from being prosecuted.
    • Section 6 of the Act lays down that no prosecution, suit or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers conferred by AFSPA in absence of a previous sanction of the central government.
  • States under AFSPA:
    • The AFSPA is now (from April 1, 2022 onwards) fully applicable only in 31 districts and partially in 12 districts of four states in the Northeast namely Assam, Nagaland, Manipur and Arunachal Pradesh.
    • The AFSPA was completely withdrawn in Meghalaya in 2018, Tripura in 2015 and Mizoram in the 1980s.

ARGUMENTS IN FAVOUR OF AFSPA:

  • For effective discharge of duty:
    • AFSPA encourages the armed forces to ensure the rule of law is reinstated in the disturbed areas of the country. With AFSPA, the forces will be able to undertake effective intelligence and counter-attack measures to tackle the insurgent inside the country.
  • Presence of threats to internal security:
    • The AFSPA is in force in areas where abnormality prevails and continue to pose a threat to India’s security. The law keeps a check on anti-national, secessionist and terrorist elements that can hamper the public order and incite violence and induce enmity.
  • Precarious neighbourhood:
    • India is surrounded by a tense neighbourhood. For eg: Pakistan is actively promoting terrorism against India, while Afghan is now under the radical Taliban. Hence, strong legislations like AFSPA and UAPA are essential to counter the threats they pose.
  • Success in Punjab:
    • AFSPA was crucial in rooting out the violent insurgency in Punjab and the militant activities in Mizoram.
  • Problem is with its abuse:
    • The law is not the problem, but it is the misuse of the law. Hence, rather than repealing the law as such, there should be strong mechanisms to prevent its misuse.

ARGUMENTS AGAINST AFSPA:

  • Unbridled power:
    • The law empowers security personnel, down to non-commissioned officers, to use force and shoot “even to the causing of death” if they are convinced that it is necessary to do so for the “maintenance of public order”. But these powers are provided without adequate safeguards for the public.
  • Misuse of powers:
    • The armed forces have been accused of conducting fake encounters and sexually exploiting the women in the disturbed areas Act.
    • Eg: Case of alleged custodial rape and killings of the Thangjam Manorama by the Assam rifles in 2004.
  • Violation of international accords:
    • AFSPA violates the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture (India is a signatory, but it has not ratified it).
  • Undermines constitutional rights:
    • Some critics compare ASFPA with the Rowlatt act because like the Rowlatt Act, any suspicious person can be arrested on the basis of doubt in the ASFPA also.
    • Power of arbitrary arrest and detention goes against the fundamental right vested in Article 22, which provides safeguards on the preventive and punitive detentions.

COMMITTEES WHICH REVIEWED THE ACT:

1) B P Jeevan Reddy Committee

  • In 2005, the killing of Thangjam Manorama by the Assam Rifles in Manipur triggered widespread protests and as a follow up, the government set up the Jeevan Reddy Commission to review AFSPA.
  • After a thorough research, the committee was firm that the Armed Forces (Special Powers) Act, 1958, should be repealed.
  • It suggested that the Unlawful Activities (Prevention) Act could be suitably amended to deal with terrorism.

2) Santosh Hegde Committee

  • In 2013, the Supreme Court was prompted to set up the Santosh Hegde committee following the petition filed by the Extra Judicial Execution Victim Families Association of Manipur asking it to look into six charges of unlawful encounter killings in Manipur.
  • The Santosh Hegde committee report said that five of the six encounters were “not genuine” and that AFSPA gave “sweeping powers” to men in uniform without granting citizens protection against its misuse.
  • Further, the committee was of the view that if greater power was given, then greater would be the restraint and stricter would be the mechanism to prevent its misuse or abuse, but this possibility was absent in the case of Manipur.

3) Justice JS Verma Committee:

  • In 2013, the justice JS Verma Committee, constituted to recommend amendments to Criminal Law, also recommended that the continuance of AFSPA in conflict areas needs to be revisited in order to extend legal protection to women in conflict areas.
  • It recommended:
    • Bringing sexual violence against women by members of the armed forces or uniformed personnel under the purview of ordinary criminal law
    • Taking special care to ensure the safety of women who are complainants and witnesses in cases of sexual assault by the armed forced
    • Setting up special commissioners for women’s safety and security in all areas of conflict in the country.

WAY FORWARD:

  • AFSPA should be amended to make it more comprehensive, with elaborate rules with respect to the manner of investigations of alleged human rights violations to reduce the possibility of it being abused.
  • The Army should view human rights violations as the biggest threat to its credibility and its stellar record in fighting insurgencies. It must re-establish the credibility by carrying out fresh investigations into all alleged cases of human rights violations.
  • Government should try to resolve the long running insurgency in North-eastern states through dialogue with insurgent groups.
  • Government should take urgent steps to create new avenues of growth through Industrialization and Infrastructural development to bring in balanced regional growth and development.

PRACTICE QUESTION:

Q. Indefinite deployment of Armed forces in the name of restoring normalcy under AFSPA undermines the ideals of democracy. Critically analyse?